HOW TO EVICT A TENANT
The following is meant to be a general summary and a simplification of Utah law and the eviction process. There are exceptions to the general rule and your case may be unique requiring additional or different measures than set forth below.
One of the questions that I get asked quite frequently from clients is “What do I need to do to evict my tenant? Can I just change the locks”? The short answer is No - a landlord should never interrupt the peaceful occupation or possession of the premises by the tenant. Among other things, a landlord should never:
change the locks.
terminate or cancel the utilities.
use force, make threats, or otherwise intimidate the tenant.
A landlord must resort to the judicial system to legally and rightfully evict a tenant. Utah law on wrongful detainer (eviction proceedings) is found in Utah Code Annotated 78B-6-801, et. seq. and is rather complex and intimidating to lay persons and attorneys alike. Here is a brief summary of the eviction process.
1. Notice to quit. A landlord must serve a tenant a notice to quit. There are different types of notices to quit depending upon the tenant’s status or the circumstances that give rise to a landlord’s desire to evict the tenant.
a. The most common notice to quit is known as a three (3) day notice to pay rent or in the alternative to quit (vacate) the property and is used when the tenant has failed to pay the rent when due or is otherwise in breach of a term or terms of the lease agreement. The notice itself demands payment of the rent arrearages, late fees, and other costs due a landlord, (or demands that the tenant cure the breach), within three calendar days of the date of service of the notice to pay rent or quit the property. If the tenant pays the rent and other amounts due under the lease, (or cures the breach) the tenant is not unlawfully detaining the property and may legally occupy the property. If the tenant fails to timely pay the rent and other amounts due and owing, (or fails to cure the breach) the tenant is unlawfully detaining the property and a landlord may proceed to file a civil action to evict the tenant.
b. A three (3) day notice to quit may be used in cases of a nuisance. Unlike the three day notice described in paragraph (a) above, the three day notice to quit does not give the tenant a right to cure the nuisance and therefore the tenant must vacate premises at the end of the three day notice to quit. It may be used when the tenant has committed a nuisance which most commonly arises when the tenant has damaged the premises, committed a criminal act on the premises, conducts an unlawful business on the premises or has breached an express term of the lease that cannot be cured, such as subletting the premises in violation of the lease agreement.
c. In the case of tenancies at will, a landlord must serve a five (5) day notice to quit. Tenancies at will are rare but most commonly arise when the lease agreement has expired and the landlord has notified the tenant that the lease will not be renewed or when the tenant is a guest. Unlike the three day notice to quit, described in paragraph (a) above, the five day notice does not give the tenant an option to remain a tenant of the property. After service of the five day notice, the tenant must timely vacate the property prior to the end of the five days or the tenant will be in unlawful detainer and the landlord may file civil action.
d. A landlord must serve a fifteen (15) day notice to quit when the tenant is renting the premises on a month to month basis (or other period). This situation most commonly arises when the term of the lease agreement has expired but the tenant continues to occupy the property. Unlike paragraph (c.) above, the landlord does not notify the tenant he must move out at the end of the term but rather both landlord and tenant continue as if there was a valid lease agreement. The fifteen day notice does not give a tenant an alternative rather it requires the tenant to unconditionally vacate the premises.
2. How should a notice to quit be served?
Anyone can serve the notice to quit. It is not necessary to have a constable or sheriff serve it. There are different requirements for the service depending upon whether property is residential or commercial.
Residential and commercial tenants can be served in the following ways:
a. Residential - by delivering a copy to the tenant personally.
Commercial – by leaving a copy with a person of suitable age and discretion at the tenant’s usual place of business.
b. Residential - by sending a copy through registered or certified mail addressed to the tenant at the tenant's residence.
Commercial - by sending a copy through registered or certified mail addressed to the commercial tenant's usual place of business.
c. Residential - if the tenant is absent from the residence by leaving a copy with a person of suitable age and discretion at the tenant's residence and mailing a copy to the tenant’s residence.
Commercial - if the tenant is absent from the usual place of business, by leaving a copy with a person of suitable age and discretion at the tenant’s usual place of business and mailing a copy to the tenant’s place of business;
d. Residential - if a person of suitable age or discretion cannot be found at the place of residence, then by affixing a copy in a conspicuous place on the leased property.
I always advise clients that irregardless of how they serve a tenant, they should also mail a certified copy to the tenant. The reason for this is in case the tenant claims they were never served with a notice to quit, the landlord can produce a copy of the certified mail receipt.
3. Filing a civil action. If a tenant fails to timely vacate the premises after being served with the notice to quit, then the tenant is unlawfully detaining the premises and the landlord must file a civil action if the tenants refuses to vacate.
a. The complaint must be filed in any district court in the county in which the property is located, or in any county in which the tenant resides or is doing business.
b. The complaint should articulate the facts of the case:
(i) name and identify the parties and where they reside or where they do business;
(ii) identify the property and where it is located;
(iii) state that the tenant was lawfully served with the applicable notice to quit; and attach a copy of the notice to quit and the return of service to the complaint;
(iv) state that despite being served with the applicable notice to quit, the tenant has failed to vacate the premises; and is unlawfully detaining the premises;
(v) state and itemize the damages that landlord has suffered as a result of the tenant’s unlawful detainer.
(vi) request that the court:
1. enter an order of restitution restoring the premises to landlord;
2. order that the lease agreement (if any) be forfeited;
3. enter a money judgment in favor of landlord and against the tenant for the total damages outlined in the complaint; and in certain cases that the damages be trebled[i].
4. award landlord its costs of court and attorney’s fees.[ii]
[i] Utah Code Annotated 78B-6-811 allows for treble damages suffered by landlord as a result of the unlawful detainer.
[ii] Although the statute allows for the landlord to recover his costs of court and attorney's fees, it has been my experience that these fees are rarely recovered as most unlawful detainer tenants do not have the assets or money to pursue post judgment.
4. In unlawful detainer actions, the time period in which to answer the complaint is drastically shortened. The complaint must be filed with the court and a copy of it along with a summons shall be served on the tenant. The summons shall state the number of days (business days) that the tenant has to file an answer with the court. The number of days shall be three (3) unless the tenant files an objection and the court finds that more time is necessary. If the tenant fails to file an answer within the time period set forth in the summons, the landlord can get a default judgment for the relief requested in the complaint.
5. It should be noted that either party may file a bond with the court, which changes the substantive and the procedural requirements of an unlawful detainer action. The requirements for the bonds and the procedures are set forth in Utah Code Annotated 78B-6-808.
6. If the case is contested, the landlord may opt to file a possession bond as indicated in paragraph 5 above. Utah Code Annotated, 78B-6-810 sets forth the procedures for contested cases, which varies depending upon the type of unlawful detainer plead in the complaint.
Eviction proceedings can be quite complex and may require the talent and skill set of an attorney. If you need further help or advice, please feel free to contact me.